Вы находитесь на странице: 1из 87

Intellectual Property Guidelines

Version 1.0 edited by the MinervaEC Working Group

September 2008

1

Introduction 6 ....................................................................................................

1.1

The Internet – Benefits and Risks for Cultural Heritage Institutions 6 ........

1.2

The Players – Institutions, Rights Owners, Users 7 ...................................

1.3

What is Intellectual Property?

.................................................................

8

1.4

Why are Intellectual Property Laws Important?

10

  • 2 Background: The Regulatory Framework

11

2.1

Global Framework

11

2.2

EU Legislation

......................................................................................

11

2.3

National Laws 13 .......................................................................................

  • 3 Rights Clearance Background

14

 

3.1

Copyright

14

3.1.1

To What Categories of Work does Copyright Apply?

14

 

3.1.2

Does Copyright Last Forever ? 15 ......................................................

3.1.3

Who Owns the Copyright? 16 .............................................................

3.1.4

Moral and Economic Rights of the Author

16

 

3.1.5

Related Rights 17 ...............................................................................

3.1.6

EU Database Rights 18 ......................................................................

3.1.7

What can legally be done with a copyright work? A look at copyright

exceptions 19 ....................................................................................................

3.1.8

The Public Domain

21

 

3.1.9

Orphan Works

...............................................................................

22

3.1.10

Out of Print Works

23

 

3.2

IPR and Digital Preservation 24 .................................................................

3.3

IPR and User-Generated Content (Web 2.0) 25 ........................................

3.4

Other Legal Issues

...............................................................................

26

3.4.1

Personal Privacy 26 ............................................................................

3.4.2

Indecency and Obscenity

27

 

3.4.3

Freedom of Expression

27

3.4.4

Personality Rights 27 ..........................................................................

3.4.5

Authenticity and Certification

.........................................................

28

 

3.4.6

Reproduction Rights 28 ......................................................................

3.4.7

Donor Restrictions 29 .........................................................................

3.4.8

Safety of Cultural Property

............................................................

29

 

3.4.9

Unfair Competition 29 .........................................................................

3.5

New Licensing and Access Models

......................................................

29

 

3.5.1

Collective Rights Management 30 ......................................................

3.5.2

Creative Commons 30 ........................................................................

3.5.3

Open

Content

31

3.5.4

Open

Source

32

3.5.5

Open

Access

34

  • 4 Rights Clearance Guidelines

36

 

4.1

Summary

..............................................................................................

36

4.2

Obtaining Permission

...........................................................................

37

 

4.2.1

Digitisation and Publication of Physical (non-Digital) Items 38 ...........

4.2.2

Publication of Digital Born Items 39 ....................................................

  • 4.2.3 Rights Assessment Examples

39

  • 4.2.4 Authorisation, Permissions and Licence Negotiation 43 .....................

  • 5 Publication Background

48

  • 5.1 Website Design

48

  • 5.1.1 Specific Design Decisions

48

  • 5.1.2 Re-Use

53

  • 5.2 Technological Protection Measures 54 ......................................................

    • 5.2.1 Image Resolution 54 ...........................................................................

    • 5.2.2 Zoomable Images 55 ..........................................................................

    • 5.2.3 ................................................................................

Watermarking

55

  • 5.2.4 Visible Digital Watermarks 56 .............................................................

  • 5.2.5 Invisible Digital Watermarks

..........................................................

56

  • 5.2.6 Fingerprinting ................................................................................

57

  • 5.2.7 .....................................................................................

Encryption

57

  • 5.2.8 Digital Rights Management (DRM) 58 ................................................

  • 5.2.9 DRM Limitations

............................................................................

60

  • 5.2.10 Business Models & DRM 61 ...............................................................

  • 5.2.11 The DRM ‘Triple Lock’ 61 ...................................................................

5.2.12

DRM and Digital Preservation

.......................................................

62

  • 5.2.13 DRM for Cultural Web Sites

..........................................................

62

  • 5.3 Documentary and Legal Protection measures 63 ......................................

    • 5.3.1 Statement of Intellectual Property

.................................................

63

  • 5.3.2 Copyright

Metadata

.......................................................................

63

  • 5.3.3 Copyright Metadata for Images

.....................................................

64

  • 5.3.4 Rights Expression Languages 65 .......................................................

  • 5.3.5 Standard Identifiers – Digital Object Identifier (DOI) 66 ......................

  • 5.3.6 MPEG21 Rights Data Dictionary

...................................................

66

  • 5.4 Digital Preservation and Legal Deposit 67 .................................................

  • 6 Publication Guidelines

.................................................................................

68

  • 6.1 Summary

..............................................................................................

68

  • 6.2 Protecting IP by Legal and Documentary Means 69 ..................................

    • 6.2.1 Copyright Notice 69 ............................................................................

    • 6.2.2 Disclaimer 70 ......................................................................................

  • 6.2.3 ...................................................................................

Links Policy

71

  • 6.2.4 Terms and Conditions

71

  • 6.2.5 Credits 72 ...........................................................................................

Ownership

  • 6.2.6 .....................................................................................

72

  • 6.3 Protecting IP by Technological Means

72

  • 6.3.1 Image Resolution Guidelines 72 .........................................................

  • 6.3.2 Watermarking Guidelines

73

  • 6.3.3 DRM Guidelines

74

  • 7 Frequently Asked Questions

(FAQs)

75

  • 7.1.1 What is covered by copyright?

75

  • 7.1.2 How do I know if an item is in copyright? 75 .......................................

  • 7.1.3 Can I digitise a photograph of a painting or artwork?

....................

75

  • 7.1.4 Can I create and disseminate a podcast of a dance or movie?

76

  • 7.1.5 What are Copyright Exceptions?

...................................................

76

  • 7.1.6 Is Copyright Law the same across Europe? 76 ..................................

  • 7.1.7 How do I identify a copyright holder? 76 .............................................

  • 7.1.8 If I find an image on the internet, can I use it? 76 ...............................

  • 7.1.9 Where can copyright-free images be found 76 ...................................

7.1.10

If I don’t charge, is it a violation?

77

7.1.11

How can I copyright my work? 77 .......................................................

7.1.12

Is my website protected by copyright? 77 ...........................................

7.1.13

Is my database protected by copyright? 77 ........................................

7.1.14

Are my emails protected by copyright? 77 ..........................................

7.1.15

Can I copyright a name?

77

7.1.16

If an item is out of copyright, can I digitise it and put it on the web?

77

7.1.17

If copyright belongs to a company which no longer exists, does the

copyright exist? 78 ............................................................................................

7.1.18

Does a company own the copyright in the work of its employees?78

7.1.19

Does a University own the Copyright to its Students’ Work? 78 .........

7.1.20

What if a work has multiple copyright holders?

.............................

78

7.1.21

If I modify a copyright work can I sell the results?

78

7.1.22

May I copy a digital item, in order to store it in a personal archive?

78

7.1.23

May I copy a CD onto my iPod?

78

7.1.24

Is viewing a file on the internet not a form of copying? 79 ..................

7.1.25

Does deep linking violate copyright?

.............................................

79

7.1.26

Can I copy text from another website?

..........................................

79

7.1.27

I am a library. Can I lend copies of a copyright work?

...................

79

7.1.28

I am a library. Can I make my own copies of a copyright work, and

lend them to the public? 79 ...............................................................................

7.1.29

I am a library. Can I make copies of a copyright work, for archive

 

purposes? 79 ....................................................................................................

7.1.30

I am a library. Can I digitise a copyright work?

..............................

79

7.1.31

I have a collection of old letters. Can I digitise them and place them

online? 80

7.1.32

I have created a digital artwork which I would like others to be able

to use, but I want everyone to know that I created it. How can I share my

 

work and protect my interests? 80 ....................................................................

7.1.33

Can I digitise a work in the public domain, from a modern printed

 

edition? 80

7.1.34

How do I stop others copying my website?

...................................

80

7.1.35

What legal statements should my online culture project website

have? 80

7.1.36

Can I protect my website from being ‘framed’?

.............................

81

7.1.37

Can I prevent deep linking to pages within my website?

81

7.1.38

Can I prevent the use of images within my website, on another

website? 81

7.1.39

Can I copy some material from another website, so long as I

attribute it?

...................................................................................................

81

  • 7.1.40 What is Public Domain?

................................................................

81

  • 7.1.41 Can an item leave the public domain?

...........................................

81

  • 7.1.42 Is a work without a copyright notice in the public domain?

............

81

  • 7.1.43 Can material which is out of copyright in one country be

downloaded into another country, where the material is under copyright?

82

  • 7.1.44 When should I use Creative Commons?

82

8

Appendix A: Background: Industrial Intellectual Property

83

  • 8.1 .............................................................................................

Inventions

83

  • 8.2 .................................................................................................

Patents

83

  • 8.3 ........................................................................................

Utility Models

84

  • 8.4 Industrial Designs

85

  • 8.5 ..........................................................................................

Trademarks

85

  • 8.6 ........................................................................................

Trade Names

86

  • 8.7 Geographical Indications

86

1

Introduction

This guide has been developed for the use of cultural heritage institutions which are digitising cultural material and publishing it online, or are considering doing so. The objective of the document is to provide pragmatic, concise advice to cultural heritage institutions on the topic of intellectual property rights, as it impacts on digitisation projects.

The guide focuses in particular on the aspects of one body of intellectual property law, i.e. copyright law, which is most relevant to cultural heritage institutions involved in digitisation projects. Other aspects of industrial intellectual property, which focuses on patents, trademarks and other commercial intellectual property, are outlined in Appendix A.

Intellectual Property Rights impact on digitisation projects at two key points

-

Permission from right-holders to digitise and publish must be obtained. This permission rule is referred to as rights clearance.

-

The rights of right-holders and of the cultural heritage institution must be secured during the process of publication of the digitised material.

-

This guide thus has two main sections – rights clearance and publication. For

each section, a range of background information is provided. Guidelines on how a digitisation project should respond to this background information are then provided.

Note on links: All the links in this document were accessible in early June 2008.

  • 1.1 The Internet – Benefits and Risks for Cultural Heritage Institutions

Traditionally, cultural heritage institutions have controlled access to the material that they contain, by physically holding the material at their premises. To view or access the material, visitors, researchers and others were forced to physically visit the cultural institution. Once there, access was typically restricted to viewing the material.

By digitising their holdings and placing them online, cultural heritage institutions enable a new form of access, where anyone, anywhere, can view the material. The educational, cultural and quality of life benefits of such access are clear. However, such open access also means that third parties can view, copy and manipulate cultural content beyond the control of the institution. The potential exists for third parties to exploit the content in new ways and to benefit from access to the content in ways not anticipated, or approved, by the holding institution. This creates a vulnerability for the cultural heritage institution from two directions:

  • 1. The institution may lose revenue or other benefits which should accrue to it from its holdings

  • 2. If the author or copyright owner of the material is not the institution, he or she may make the institution legally and financially liable for the abuse of his or her intellectual property. This means that institutions wishing to digitise materials without breaking copyright laws and losing credibility should acquire the right to do so from the right-holders of such materials.

The benefits of digitisation and online publication of cultural heritage material are enormous – for the institution itself, for students, researchers and for the interested public. Opening access to the institution’s collections raises the profile of the institution, underlines its public service value and helps to reinforce the message that the institution deserves public support. Online digital representations of cultural material enable re-use of the material across several fields of application, from printed t-shirts to scholarly works. Online access opens Europe’s cultural riches to users around the globe, including the elderly or ill who cannot physically visit the institution. It also raises the profile of the institution, and encourages visits to view the original materials.

The potential for additional benefits from cultural tourism, from the sale of reproductions and other merchandise and from new scholarship and research is significant. However, if the legitimate interests of the institution and of the copyright holder are to be protected, then it is essential that intellectual property protection is taken into account from the very start of the digitisation project.

  • 1.2 The Players – Institutions, Rights Owners, Users

A key player in any digitisation project is the cultural heritage institution which

  • - holds the cultural material

  • - digitises it and

  • - publishes it online in an online culture project.

However, the institution is not the only actor on this stage. Even if the material is owned by the institution, the right to represent or copy the material (e.g. by digitisation, by photography, by other means) may not be owned by the institution and may in fact be held by the rights holder, who may be the author of the material or by some other party. The key points are the following ones:

digitisation is a form of reproduction that is subject to copyright restrictions; online publication entails a reproduction and subsequent diffusion of digitised copyrighted content that copyright law reserves to the author (or to the copyright owner) as a form of making the content available to the public; if the intellectual property rights on the material are not owned by the institution, the permission of the rights owner must be secured before such material is digitised or made available online. As mentioned in more depth in

section 1.3 (see below), this agreement is necessary since copyright laws prohibit any translation or modification (i.e., re-use) of protected content without the copyright owner’s authorisation.

The third link in the chain is the end user, who accesses the digital material over the internet. Once in possession of the digital material, the user can re-use in a large number of ways. The manner in which it may be legally re-used must be clearly stated by the publisher (the cultural institution), who must have agreed this use policy in advance with the rights owner.

In many cases, of course, the cultural institution will also be the rights owner. However, this should not be taken for granted; an important step in any digitisation project is the verification that the institution has the right to digitise and to make each item available.

Rights Institution Owner
Rights
Institution
Owner
Agreed Use Policy
Agreed Use
Policy
End User
End User

Figure 1 - The Players

  • 1.3 What is Intellectual Property?

“Property” is something tangible that is owned, and that brings benefits to the owner. “Intellectual property” is constituted by a bundle of rights which are associated with (mostly intangible) works of intellect whose concrete expression or underlying ideas are granted temporary legal protection against uses not authorised by authors or inventors. There are two major categories of intellectual property:

Copyright protects creative ‘works’ such as literary works (e.g., novels, poems, newspapers and scientific articles, etc), paintings, architecture, sculpture and music. Copyright protects the right owners of such works, by

enabling them to allow, or to forbid, acts of reproduction, distribution, communication (or “making available”) to the public and re-use of these works. This usually means that if a third party wishes to reproduce or publish the work on the Internet, this party shall obtain permission from the right- holders. Copyright applies to original works, even if the notion of originality that makes a work eligible for copyright protection varies considerably in the EU from one jurisdiction to another, in light of the non-harmonisation of the copyright subject matter at the EU level. The copyrighted work shall ‘exist’ in some tangible medium (e.g. on a computer, on paper, on canvas, in stone) whereas a mere idea cannot be copyrighted as such. This means that copyright law affords protection to concrete expression embodied into a creative work without extending to protection of the ideas underlying the work. Copyright protection expires 70 years after the author’s death and, as opposite to other intellectual property rights conferred by patents, trademarks and industrial designs, it operates automatically (i.e., by law) without requiring the author of a work (or his/her assignees) to register the work at a public office to obtain the above-mentioned protection. Copyright protection covers artistic works, such as paintings, literature, music, performances, sound recordings. The owner of a piece of intellectual property is referred to as the ‘rights owner’, because he or she owns the right to allow or forbid use of the property. For example, if a group of musicians composes a song, copyright law entitles these musicians to claim paternity over the work by creating a moral right of attribution on the protected work and to secure the financial benefits deriving from commercial uses of the song (e.g., broadcasting, web-casting and recording activities).

Industrial intellectual property concerns the protection of ideas that can be marketed in new, innovative products and processes. The most important example of industrial property is the patent, which grants exclusive use and application of an idea to the inventor, for a fixed period of time. Related concepts are trademarks, registered designs and appellations of origin.

A common feature of the two above-mentioned categories of intellectual property is that such property can, like other property, be freely acquired, sold and assigned. Importantly, intellectual property rights existing on a given item can be separated from the item itself as a consequence of the clear distinction between the intellectual and real (i.e., tangible) property regimes. For example, the owner of a painting may donate it to a gallery without conferring automatically to the gallery the right to copy the painting and to sell reproductions.

While copyright and industrial property rights are often dealt with together by law, it is copyright that is most relevant to cultural heritage institutions involved in digitisation projects. Industrial intellectual property is surveyed in Appendix A.

Guidance
Guidance

There are countless resources online dedicated to Intellectual Property. A sample from reputable sources includes the following.

The World Intellectual Property Organisation is an agency of the United Nations, “dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest”. Its handbook on Intellectual Property (“WIPO Intellectual Property Handbook:

Policy,

Law

and

Use”)

is

ip/en/iprm/index.html. WIPO’s

available

FAQ

at

on

http://www.wipo.int/copyright/en/faq/

http://www.wipo.int/about-

copyright

is

here

Electronic Information for Libraries (EIFL.net) is a not-for-profit organisation

focusing on access to electronic resources by library users in developing countries. Its “Handbook on Copyright and Related Issues” is available at

http://www.eifl.net/cps/sections/services/eifl-ip/issues/handbook

A general helpdesk and source of knowledge about Intellectual Property is the Intellectual Property Helpdesk: see http://www.wipo.int/about- ip/en/copyright.html and http://www.ipr-helpdesk.org/index.html.

  • 1.4 Why are Intellectual Property Laws Important?

Intellectual property laws provide a framework for rewarding creative people. Without them, inventors would derive no benefit from new ideas, artists would not gain from their work, and the investment made in works such as books, films and software would never be recouped. The fact that creativity is rewarded tends to stimulate new creativity, which has benefits for society as a whole.

Industrial intellectual property protects the consumer – branding and trademarks give the consumer confidence that what they are buying will meet their expectations.

For a cultural heritage institution involved in digitisation projects, the enforcement of intellectual property laws implies that the institution can safely place information online, in order to stimulate interest in its holdings, without the risk that the published material will be re-used without permission. However, it also places a responsibility on the institution, to ensure that it has copyright clearance from the right-holders, and to take appropriate measures to protect its intellectual property rights.

  • 2 Background: The Regulatory Framework

Intellectual property is protected and regulated by a framework of laws which seek to reward creative people, while defining how new works and ideas can be used by society as a whole. The need to protect intellectual property has been recognised for centuries, as has the requirement for a common approach to intellectual property protection across national boundaries.

  • 2.1 Global Framework

Global intellectual property frameworks were first agreed in the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Since then, national and international initiatives have led to the current situation. Today’s global intellectual property law is based on multilateral agreements which co-exist with and complement the Paris and Berne conventions. These agreements are the 1994 TRIPS (Trade Related Aspects of Intellectual Property Rights) agreement and the 1996 WIPO (World Intellectual Property Organisation) Internet Treaties. The TRIPS agreement was promoted and adopted under the aegis of the World Trade Organisation to regulate intellectual property as an essential part of international trade. The WIPO Internet Treaties sought to adapt international legislation on copyright to the advent of digitisation and, in particular, of a digitally networked environment such as the Internet. In addition to that, it is worth noting that intellectual property is explicitly mentioned in the Universal Declaration of Human Rights and also in 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

Guidance The Berne Convention for the Protection of Literary and Artistic Works is available at http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html
Guidance
The Berne Convention for the Protection of Literary and Artistic Works is
available at http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html
The
TRIPS
Agreement
can
be
found
at
http://www.wto.org/english/tratop_e/TRIPS_e/TRIPS_e.htm
The 2005 Unesco Convention on the Protection and Promotion of the
Diversity
of
Cultural
Expressions
is
available
at
http://portal.unesco.org/en/ev.php-URL_ID=31038&URL_DO=DO_TOPIC
&URL_SECTION=201.html
  • 2.2 EU Legislation

The EU Directorate General Internal Market is responsible for the development of intellectual property law policies within the EU. The major EU initiative in the area of copyright was the 2001 EU Copyright Directive (“Directive 2001/29/EC of the

European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society”). The Directive mandates all member states to update their national legislation to a common, model. The Directive reaffirms the basic principles of intellectual property and in particular addresses the impact of the Internet on the scope of copyright.

Previous initiatives undertaken by the EU in the copyright field concerned the harmonisation of very specific aspects of national laws, where such laws acted as obstacles to the free circulation and marketing of goods embodying copyrighted works within the European Single Market. As of 1991, the EU started enacting copyright directives with a view to removing existing discrepancies at national level in the scope and duration of copyright protection. These directives targeted aspects such as the existence and scope of copyright protection on computer programmes and databases; the common duration of copyright (i.e., 70 years post mortem autoris) and the establishment of common criteria for the identification of applicable copyright laws to satellite and cable broadcasts. All these measures were intended to enable and foster the development of single markets in all sectors where copyright law sets out EU-wide industrial policies.

Guidance An EU Website dedicated to the Copyright Directive is at

http://ec.europa.eu/internal_market/copyright/copyright-infso/copyright-

infso_en.htm

A Section by Section summary of the Directive is available from the Minerva Europe website at http://www.minervaeurope.org/structure/ workinggroups/servprov/ipr/documents/wp4ipr040806.pdf (p. 10 et seq)

A complete overview of the EU Directives on copyright harmonisation is provided at: http://ec.europa.eu/internal_market/copyright/index_en.htm

The US Copyright Act § 302 is at http://www.copyright.gov/title17/92chap3.htm

  • 2.3 National Laws

Each country has its own copyright laws, which reflect the overall copyright concept, flavoured by the national legislative background. Despite the fact that copyright laws vary considerably in many respects from one jurisdiction to another, two legal models are normally used to illustrate how lawmakers have tended to shape their national copyright systems:

  • - the copy-right model and

  • - the droit d’auteur model.

The “copy-right” model developed in common law countries (e.g., the UK, Ireland, the US, etc) provides for a kind of protection of creative works which is focused mainly on how to ensure a financial reward to creators and how to enable them to recoup the economic investments and to remunerate the efforts made in their creative activities. This model places emphasis on the protection of creative/useful works with a lesser focus on moral rights of paternity or integrity over their creations than is present in droit d’auteur systems.

Unlike the copyright model, the droit d’auteur model developed firstly in the post-revolutionary France and then adopted in most European-continental countries places the author at the core of the protection system by granting him or her non-waivable, moral (i.e., personal) rights of paternity and integrity over his or her works in addition to a bundle of very broad exclusive rights covering all commercial uses of such works.

As mentioned above, national laws within the EU are increasingly influenced by EU directives, which have served to establish a common baseline for copyright protection across the EU. What is most relevant for cultural heritage institutions online is a correct understanding of the scope of the harmonisation provisions embodied into European copyright directives and the still fundamental role played in the European Union by national laws in setting out basic principles of copyright protection. For instance, as things stand, the standard of originality which determines eligibility for copyright protection and statutory exceptions which exempt certain socially valuable uses (e.g., personal use, educational and research uses, news reporting, etc) from the copyright scope are not fully harmonised at the European level. This implies that cultural digitisation projects are advised to look primarily at their national legal codes to find out the copyright rules applicable to acts that they intend to perform with copyrighted works.

  • 3 Rights Clearance Background

3.1 Copyright

From the perspective of a cultural heritage institution engaging in a digitisation and web project, copyright is the most important of the intellectual property rights. Digitisation is a form of copying, and plac ing material online is a form of making material available to the public; both copying and online publication are covered by copyright.

Two sets of copyright need to be respected and protected: the rights of the rights-holders existing on the cultural heritage items which are digitised, and the rights of the cultural heritage institution to protect the work for which it has invested in digitisation and online publication.

The following paragraphs focus on categories of works which are eligible for copyright protection (see §3.1.1), on the duration of this protection (see §3.1.2) and on the types of moral and economic rights that copyright laws - especially EU copyright law - provides to authors of creative works (see §3.1.4).

A specific paragraph on related rights shows that copyright systems establish intellectual property rights even for creations and activities that go beyond the categories of creative works eligible for copyright protection (see §3.1.5). These protected creations and activities are mostly associated with the performance and dissemination of both protected and out-of-copyright works by people such as performers, film and sound recording producers and broadcasters. Immediately after that, this section will focus then on the subject matter of EU database rights.

The second part of this section sheds light on issues which are of crucial importance for the activities carried out by cultural heritage institutions and, in particular, for the digital preservation of materials they may own or safeguard: the notion of public domain and the identification of categories of works for which it is worth outlining new legislative and policy trends: orphan works, out-of-print works and user-generated content.

3.1.1 To What Categories of Work does Copyright Apply?

In order to enjoy the protection of copyright law, a work must be original. It must be clear that this work is a new creation of the intellect. This does not mean that works which consist of the creative combination of elements of other works (like a collage, or a musical work which uses ‘samples’ of other music) cannot be copyrighted. The work must exhibit creativity and originality. Typically, all artworks, photographs, written compositions, statues, architectural plans and models fall under copyright.

As mentioned above, the idea expressed in the work

does not

need

to

be

original. But the manner (i.e., the concrete expression) in which the idea is expressed (in words, in brush strokes, in sculpture…) must be original.

3.1.2 Does Copyright Last Forever ?

No. Copyright has a strict duration, which is set by law, and which in most cases follows the Berne Convention. As a general rule, copyright applies for the lifetime of the creator, plus 50 years. However, in the EU and the US, copyright applies for 70 years after the author’s death date as a result of legislative initiatives and amendments undertaken firstly in the EU (by adoption of Directive 93/98/EEC, then codified and replaced by Directive 2006/116/EC) and later in the US, as a political response to the above EU initiative in this field (see the 1998 Sonny Bono Copyright Term Extension Act, which amended §302 of the U.S. Copyright Act of 1976 by replacing the original 50 years protection term with a new 70 years term).

The recent extension of the copyright term of protection in the EU and in the US aimed at protecting the economic interests of the author and his or her heirs. However, this term extension entailed that the freedom of others to use, integrate and build upon pre-existing materials would have been restricted by delaying the entrance of copyrighted materials into the public domain.

A clear issue is where a work has been created by several individuals (e.g. a pop song by Lennon and McCartney), or where the author is anonymous or pseuodonymous. In this case, a typical approach is to establish a reasonable belief that the last author has been dead for seventy years.

Guidance The texts of Directives 93/98/EEC and 2006/116/EC are available on the EU’s Eurlex system at
Guidance
The texts of Directives 93/98/EEC and 2006/116/EC are available on the EU’s
Eurlex
system
at
http://eur-
lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=
en&numdoc=31993L0098&model=guichett
§302
of
the
US
Copyright
Act
can
be
found
at
http://www.copyright.gov/title17/92chap3.html
A profile of copyright duration around the world is provided by Australian
consultancy Caslon Analytics at http://www.caslon.com.au/durationprofile.htm
Guidance on duration, and on other aspects of copyright, is available from the
UK
National
Archives
at
http://www.nationalarchives.gov.uk/legal/pdf/copyright_full.pdf

3.1.3

Who Owns the Copyright?

In general, the owner of the copyright, i.e., the right-holder, is the author or creator of the work. However, there are exceptions to this principle that vary from one jurisdiction to another and are not harmonised at the EU legislative level. Common examples include the following:

If the work was created by an employee of a company during working hours, the company will typically own the copyright. If the work is created by more than one person, all creators hold copyright, unless otherwise agreed. Where students have assigned copyright in their research or exercise works to the university or educational body, the copyright then resides with the body.

Copyright can be sold, inherited or assigned. It can also be divided, so that the rights holder can assign copyright for a particular application or medium. Thus, for example, an author may sell the movie rights to a book, while retaining merchandising, book publication, etc.

If a company goes out of business, its copyright assets belong to whoever bought the company. If the company is bankrupt, then no-one owns the copyright; however, if the company were to be re-established, its assets would belong to the new owners.

  • 3.1.4 Moral and Economic Rights of the Author

In most EU countries (especially the European-continental systems adopting the above-mentioned droit d’auteur model), the author of a copyrighted work has both moral and economic rights on his or her creative works.

Moral rights typically include:

A right to paternity, which ensures that a work cannot be falsely attributed. Thus, for example, the text of a book cannot be changed without the authorisation of the author, or a quotation must be accurate and must not misrepresent the work from which it is extracted. An interesting case is where a work is unfinished, and where the original creator does not wish to be associated with the work after it has been completed by a third party; A right to integrity, which guarantees the integrity of a work in such a way that the work cannot be modified or distorted without the author’s permission. It is worth noting that this moral prerogative is associated by law with the grant of the economic right to authorise any adaptation or modification of the protected work; A right to keep the work unpublished, according to which the author is entitled to freely decide whether his or her work shall be released to the public or not.

Moral rights are distinct from economic rights (see below) insofar as they are not limited in time and cannot be transferred, since copyright laws in civil law systems express them as personal rights of the author

Economic Rights

Unlike moral rights and the right to authorise adaptations or modifications of copyrighted works, copyright’s exclusive economic rights were harmonised at EU level by the adoption of Directive 2001/29. This makes it possible for us to refer to the directive text for a description of these prerogatives:

  • - the right of reproduction, which includes the right to authorise or prohibit digital reproductions and temporary copying such as that implied by acts of browsing and caching web-pages (see article 2 of Directive 2001/29/EC);

-

the

right

of

communication to the public (see article 3 of Directive

2001/29/EC), including the right of making the protected work available to the public in such a way that members of the public may access the work at a time and from a place individually chosen by them (i.e. on-demand

dissemination);

  • - the right of distribution of tangible formats embodying the copyrighted work and the related right to authorise or prohibit the first sale or transfer of ownership in the EU territory (see article 4 of Directive 2001/29/EC).

A right-holder may freely assign the economic rights to a work to a third party; this does not authorise the third party to distort or modify the work in any way.

3.1.5 Related Rights

A further body of copyright law addresses the area of copyright related rights. These are rights which are similar to copyright, but do not protect the author of the work. Instead, they protect others who are in some way involved with the performance of the work or in its communication to the public or other audiences. The French term ‘droits voisins’ (neighbouring rights) is perhaps clearer.

A good example is given by the performer of a piece of music and by the sound recording producer who records that performance by embodying it into a phonogram. While the core copyright protects the composer of the music, the performer also has a creative input which should be protected, as should the economic investment made by the recording producer. This type of creativity and investment is given an incentive by law through the establishment of copyright related rights. Producers and broadcasters of music, films, etc, are also typically protected under related rights law.

is worth noting here that the major EU initiative in the field of copyright harmonisation, i.e. Directive 2001/29/EC, treated the subject matter of copyright-

It

related rights in the same way as author’s rights. This means that holders of related rights in the EU enjoy the same economic rights granted to authors and briefly outlined above (see §3.1.4).

Finally, article 12(2) of Directive 2001/29/EC makes it clear that protection of rights related to copyright under the directive shall leave intact and shall in no way affect the protection of copyright.

Guidance

Related or neighbouring rights are treated under the EU copyright directives 92/100/EEC, 93/83/EEC, 93/98/EEC, 2001/29/EC, 2006/115/EC and 2006/116/EC. A guide to these directives and related documents is provided at

http://ec.europa.eu/internal_market/copyright/documents/documents_en.htm

3.1.6 EU Database Rights

EU database rights constitute an important category of copyright for cultural heritage institutions. These are the rights of the creator of a database to have his work protected against duplication and unauthorised extraction of data as well as large-scale copying by a third party.

Directive 96/9/EC shaped the legal protection of databases in the EU as a two- fold regime of protection. On the one hand, databases which are ‘compilations’ of data and which can be argued to have involved some originality or creativity in the selection of the material embodied in the database are protected under the copyright regime applicable to all creative works eligible for this protection. On the other hand, databases are protected in the EU by a so-called sui generis right insofar as they represent a significant investment of effort, regardless of whether or not any creativity, judgement or originality was involved in the selection of the material in the database. This sui generis right is particularly important for databases holding comprehensive or complete data sets, where no selection of materials can be demonstrated. Under EU law, unlike the term of 70 years after the author’s death applicable for copyrighted works, the sui generis database right lasts for 15 years after the completion of the database. This period may be re-started if the database is substantially updated.

The law regarding the EU sui generis right created a significant difference between the EU and the US, where a mere aggregation of data does not qualify for copyright (or copyright-like) protection.

Guidance
Guidance

The Directive which directly addresses the IP protection for databases is at

http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML

3.1.7 What can legally be done with a copyright work? A look at copyright exceptions

The details of the laws on copyright exceptions and limitations vary considerably from one country to another. This is due to the fact that exceptions and limitations are designed to pursue disparate public policies and to serve different cultural objectives by exempting socially valuable uses of protected materials from the scope of copyright.

However, article 5 of Directive 2001/29/EC provided harmonisation measures at EU level for exceptions and limitations. The coming into force of this harmonisation provision had the effect of obliging EU Member States to choose the exceptions and limitations to be introduced or maintained in their copyright regimes from a detailed list of acts exempted from the scope of copyright .

Unfortunately, the Directive made the exceptions listed in the above-mentioned provision optional, so that Member States were entitled to choose whether to implement these copyright exemptions or not. This legislative measure resulted in a low level of effective harmonisation of copyright exceptions and limitations under national laws, with the consequence that certain uses of copyrighted materials permitted by law in one EU jurisdiction may not be permitted in another.

Copyright exceptions in droit d’auteur systems are drafted very narrowly and refer to specific cases of exemptions from copyright that are enforced restrictively by courts. In common law systems such as UK and US laws, to the contrary, this body of copyright law is given a broader and more flexible shape. Under U.S. law, in particular, the fair use doctrine embodied into §107 of the Copyright Act provides for a set of factors to be considered by courts when reviewing cases of copyright infringement. These factors include the purpose and character of the use; the nature of the copyrighted work; the portion of the work used and, most importantly, the effect of the use on the potential market for or value of the copyrighted work. Under UK copyright law, copyright exceptions are embodied into the fair dealing doctrine, which gives courts a high degree of discretion in evaluating its case-by-case applicability (in the same way as the fair use doctrine allows in the U.S.) while drawing on a set of specific statutory exceptions, as droit d’auteur systems do.

Notwithstanding the above-mentioned differences among national laws on this point, the following remarks may apply in most EU countries:

1. Certain categories of work may be free of copyright. In some countries,

the text

of

legislation is free of copyright.

In

the US,

maps and other

materials created with public money are in the public domain. This does not apply in most European countries, however.

  • 2. A small part of written copyright works can be quoted in another work, so long as the source and copyright holder of the quotation is cited.

  • 3. A part of the work may be used for news reporting

  • 4. A work may be used by way of illustration for educational purposes.

  • 5. The owner of an authorised copy of a work may make copies of his or her own, for archive, private and non-commercial use. In particular, in most EU Member States (this is not the case of UK, Ireland and Malta, though) a complex statutory exception exists to legalise acts of (unauthorised) private copying carried out on recordable formats and by virtue of copying devices on the price of which the user pays a copyright tax collected by authors’ collecting societies. Under this statutory licence scheme, for instance, the lawful acquirer of a music CD is entitled to make a copy for his or her own use.

As regards applicable copyright exceptions, cultural heritage institutions should always bear in mind the following issues raised by the enactment of Directive 2001/29/EC:

  • 1. Article 6 of this Directive on copyright in the information society protects

the use of digital rights management (DRM) and copy protection devices, and

legislates against efforts to overcome them. This means that the above-

mentioned making of copies of copyrighted works for personal and archive purposes or for other purposes that up to now have been covered by statutory exceptions may be legally prevented by the right-holder through license agreements automatically enforced by DRM technologies. In addition, the Directive tends to make copyright laws more stringent than they were before. See section 5.2.8 for more on DRM.

  • 2. The interpretation of copyright exceptions, and the implementation of the

2001 EU Copyright Directive, may vary significantly from one EU member

state to another. Cultural heritage institutions should review their own legislation and case law before relying on a copyright exception as the basis for a decision to publish material online.

  • 3. In particular, prior to publishing their materials online, cultural heritage

institutions should check carefully whether their applicable national law has opted for (or maintained) and implemented a few copyright exceptions embodied into article 5 of Directive 2001/29/EC and applicable to acts carried

out by libraries and other cultural institutions.

These acts that national laws are entitled to exempt from copyright are:

  • - Specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage (see art. 5(2)(c));

  • - Use of works, such as works of architecture or sculpture, made to be located permanently in public spaces (see art. 5(3)(h));

  • - Use for the purpose of advertising the public exhibition or sale of artstic works, to the extent necessary to promte the event, excluding any other commercial use (see art. 5(3)(j));

  • - Use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of libraries, educational institutions, musems and archives of works not subject to purchase or licensing terms which are contained in their collections (see art. 5(3)(n)).

3.1.8 The Public Domain

When a work is not protected by copyright, related rights or other legal constraints, it is said to be ‘in the public domain’. Because the laws which govern intellectual property vary from one country to another, items may be in the public domain in one country, and protected in another. When a copyright has expired, the work will usually enter the public domain. In EU countries, for example, books where the author has died more than seventy years ago will be in the public domain. Particular editions or presentations may be protected by intellectual property law, but the literature itself may be re-used without restriction. The works of Beethoven are in the public domain; however a performance of Beethoven’s music will be protected by related rights for the performers, sound recording producer, broadcaster, etc.

Precise details of how a work enters the public domain vary from jurisdiction to jurisdiction. In general, it is best to assume that an item is not in the public domain. In particular:

An item received for free (e.g. downloaded from the internet) is not

necessarily in the public domain: this is the case of open source software and works released under various internet-friendly copyright licensing models such as the GNU Public License, Copyleft and Creative Commons, which are not in the public domain; An item without a copyright © notice is not automatically in the public domain.

Guidance

Several EU projects address the public domain. Examples include Communia (www.communia-project.eu), and Rightscom (www.rightscom.com)

More

in-depth

discussion

of

the

underlying

rationale

presented

is

by

the

Foundation

Information

for

Policy

Research

(FIPR)

at

http://www.fipr.org/intellectual.html

3.1.9 Orphan Works

An orphan work is a copyrighted work where it is practically impossible to identify or contact the right-holder in order to gain authorisation to use the work. There is little definitive legislation on the topic of orphan works, although the (slow) trend is towards making it possible to move orphan works into the public domain.

Orphan works are a major issue: an enormous amount of material exists which has been created in the last 100 years (so the likelihood is that the creator has not been dead for seventy years) and so is under copyright, but the rights holder is impossible to identify or contact. As a result, enormous amounts of cultural material (e.g., documentary films, photographs, and so on) are not being reproduced, included in other works or made available to the public, even though in many cases the rights holder might have no objection. The risk for the user of an orphan work is great: if a copyright holder emerges after an orphan work has been used, the resulting costs may be significant.

There are several ongoing efforts to deal with orphan works, including proposals from the US Copyright Office (report submitted to US Congress Jan 31, 2006) and the Gowers Report in the UK. The overall thrust of these initiatives is to allow the use of orphan works after a ‘reasonable search’ by the user for the copyright holder. A certain amount of resistance is being driven by the photographic, graphical and textile design industries, where copyright information is easy to detach from the work itself.

The major initiative undertaken by the EU in this field is the i2010 Digital Libraries initiative started in September 2005 and then developed by the European Commission – DG Information Society and Media. Within this initiative, the European Commission set up a High Level Experts Group (HLEG) to examine various legal, technological and economic issues involved in the Digital Library initiative. This group brought together cultural institutions, publishers, technology firms and academics to find ways forward that are agreeable to stakeholders on potentially difficult issues. A “copyright sub-group” was established within the HLEG to study and report on the implications for copyright of digitisation projects involving orphan works as well as out-of-print works.

As regards orphan works, a Memorandum of Understanding was signed on 4 June 2008 by 24 European and international organisations of all categories of stakeholders including libraries. In this document, the parties have established a common understanding of what measures have to be taken before a work can be considered to be orphan. In this regard, the Memorandum provides guidelines

for diligent search for right-holders to orphan works, which address four main sectors: text, audiovisual, music/sound, visual/photography.

In particular, these guidelines detail an agreed procedure of diligent search for right-holders, according to which:

  • - Search is carried out prior to the use of the work;

  • - Search is performed title by title or work by work;

  • - Search starts usually from the country of origin/publication/production of the work;

  • - Search shall be documented (dates, resources and search terms employed, copies of public announcements where relevant;

  • - An orphan work notice should be attached to the work at the time of publication (e.g. “Work still in ©, right-holder could not be traced…”). In addition to that, the HLEG June 2008 Memorandum of Understanding provided guidelines for avoiding orphan works in the future by use of electronic identifiers (including the name of the author); automatic metadata on works and right-holders upon creation; standard identifiers recording the devolution of rights (i.e. right-holders chain); and records of authors’ death dates in national bibliographies.

Guidance

The i2010 Digital Libraries High Level Experts Group addresses Orphan Works in its report at

http://www.edlproject.eu/downloads/report_HLEG_preserv_orphan_works.pdf

The EU i2010 Digital Libraries initiative has led the development of the above- mentioned Memorandum of Understanding on Orphan Works. It can be viewed and downloaded at

http://www.eblida.org/uploads/eblida/2/1213704515.pdf

More information on the High Level Experts Group is available at http://ec.europa.eu/information_society/activities/digital_libraries/cultural/actions_ on/consultations/hleg/index_en.htm

  • 3.1.10 Out of Print Works

When demand for a work from the public drops below economic levels, publishers stop reproducing it. This makes it difficult to acquire a copy of the work, which is said to be ‘out of print’. In general the fact that a work is out of print and a commercial copy of the work is not available does not mean that it is out of copyright. Out of print works remain protected by the same laws as works which are easily commercially available.

In the EU, a report by the above-mentioned i2010 Digital Libraries High Level Experts Group (HLEG) suggested new model licenses to allow libraries and

archives to make digital versions of networks.

out of print works available

on secure

If a long-term solution for out of print works did not emerge in the EU, for the public and for cultural heritage institutions this would mean that a large number of works could become obscure and unknown, due to being protected by copyright law despite the fact that there is no commercial exploitation ongoing. The i2010 Digital Libraries HLEG has sought a permanent solution to this problem by drafting and recommending a model license for the digitisation and accessibility of out of print works to the European Commission. This proposal by the HLEG copyright sub-group was based on four main elements:

  • - a model license;

  • - the establishment of a database of out-of-print works;

  • - a joint clearance centre;

  • - a procedure to clear rights.

It is worth noting here that the HLEG proposal of adoption of a model license was two-fold, since it included standard agreements for the digitisation and online presentation of out-of-market books over both open networks accessible by the general public and secure networks accessible by authorised users only.

Guidance

Out of Print works are addressed by the i2010 Digital Libraries High Level

Experts

Group

at

http://www.edlproject.eu/downloads/report_HLEG_preserv_orphan_works.pdf

  • 3.2 IPR and Digital Preservation The preservation of digital material relies on its repeated copying, in order, as a minimum, to ensure that the media on which the digital material is stored remains current, and that hardware is available which can read the media. Thus, for example, digital content originally stored on 5.25 inch floppy disks are almost unreadable now, and will need to have been copied to 3.5 inch disks, then to CD. The archiving or backing up of a digital artefact is itself a form of copying and so governed by intellectual property law. Fortunately, there are exceptions to copyright law that can often be applied. These include specific acts of reproduction made by publicly accessible libraries, educational establishments, museums or archives which are not for direct or indirect economic or commercial advantage (see Article 5(2)(c) of Directive 2001/29/EC) and use for educational and archive purposes.

A need to ask the right-holder of a digital artefact for a specific authorisation could arise where copying for purposes of archiving or backing up were not covered by a copyright exception under the applicable national legislation As a result, cultural heritage institutions which engage in digital preservation may need to seek to secure the right-holder’s permission before archiving takes place. In so doing, the institution should emphasise that the copying is for preservation only and will have no impact on the commercial value or exploitation of the work, and that the integrity of the digital object will not be reduced.

Digital preservation may be covered under Article 5(2) of the above-mentioned 2001 EU Copyright Directive, which lists several exceptions to the right of reproduction. The most relevant among these exceptions for purposes of digital preservation is provided by article 5(2)(c), which allows EU Member States to exempt from copyright

“…specific acts

of

reproduction made

by publicly

accessible libraries, educational establishments or museums, or by archives, which are no for direct or indirect economic or commercial advantage […]”.

However, all these exceptions, including the most important one for cultural institutions, are optional under the 2001 Copyright Directive, which means that some Member States may enshrine them in national law, and some may not.

The enforcing of intellectual property using digital rights management has an impact on the preservation of digital material. This is discussed in section 5.2.12, below.

Guidance

The CEDARs project addressed the relationship between Digital Preservation and IPR. The key results are published here:

http://www.cus.cam.ac.uk/~ew206/ipr.html

The Digital Preservation Coalition is an organisation dedicated to addressing many issues in this area. Their website is at www.dpconline.org

  • 3.3 IPR and User-Generated Content (Web 2.0)

Web 2.0 content is created to a large degree by the users. Typical applications such as YouTube, Flickr and Facebook combine an infrastructure provided by the website with content provided by the users. There are several issues here.

Much

of

the

material

on

sites

such

as

YouTube is uploaded in

contravention of copyright. While this is mainly a concern for the YouTube

site (and its parent company, Google), it does highlight the fact that ‘user- generated’ content may not in fact be generated by users.

Material on Web 2.0 sites is typically uploaded in compliance with set terms and conditions of use. These will often make the content, which is generated by the users, subject to copyright which is vested in the site. It may also license the site to re-use the content for its own purposes.

For a cultural heritage institution which wishes to add some Web 2.0 functionality to its own web application, for example by enabling users to comment on cultural material online, or to upload old photos of their own families, or to tell stories that their ancestors told them, etc., it is essential that IPR be clearly managed from the start. That means that cultural heritage institution sites must also have clear terms of use, to which users must consent, before they create content on the site. This protects the site from third parties (e.g. the creators of copyright material which users are uploading without considering IPR), and also ensures that the site can re-use and re-format user content if the cultural heritage institution sees fit.

Guidance JISC in the UK has funded a project (Web2Rights) which addresses this issue. See http://www.web2rights.org.uk/index.html

  • 3.4 Other Legal Issues

Copyright law and licensing are important issues to take into account when creating digital item, digitising non-digital items and providing access over the internet. In many cases, copyright and other intellectual property issues are the most important obstacle to be overcome. They may, for example, have a decisive impact on the choice of material to be included in the online resource.

However, there are other legal issues which need to be considered when offering an online cultural heritage resource. These include the following:

  • - The need to protect personal privacy

  • - Indecency and obscenity laws

  • - The right to freedom of expression

  • - Personality rights

Material placed on the internet is accessible globally. This means that cultural heritage institutions may need to take legal and cultural sensibilities in other countries into account, when creating online resources.

3.4.1 Personal Privacy

Cultural heritage institutions should not intrude upon the personal privacy of any individual while creating and publishing content on the internet. In particular, no pictures of individuals should be taken and published without their consent. Even

if

the

picture

is,

for example,

covering an exhibition, it is important that

individual can be identified in the picture.

no

Guidance

The w3c has an initiative on personal privacy policies at http://www.w3.org/P3P/details.html and some guiding principles at

http://www.w3.org/TR/P3P/#guiding_principles

EU Data Protection law is outlined at http://ec.europa.eu/justice_home/fsj/privacy/index_en.htm

  • 3.4.2 Indecency and Obscenity

The line between art and indecency varies from one jurisdiction to another. In particular, the laws concerning nudity are typically stricter in the US than in Europe, while Middle Eastern customs are often even more conservative. While selecting material for an online resource, cultural heritage institutions may take into account the greater sensitivity of some audiences to certain types of material.

  • 3.4.3 Freedom of Expression

The previous paragraph may be in direct conflict with beliefs and laws which support freedom of expression. It is the responsibility of the cultural heritage institution to decide where the limits of good taste and freedom of expression lie.

Freedom of expression also applies to artists, and may conflict with personal privacy laws. If an artistic installation includes representations of individuals, the potential exists for these individuals to believe that their personal privacy has been intruded upon. Again, this is something which the cultural heritage institution may take into account.

Guidance

IFLA and UNESCO have published guidelines on access to online material, at http://www.ifla.org/faife/policy/iflastat/Internet-ManifestoGuidelines.pdf. This follows on from IFLA’s Internet Manifesto, at

http://www.ifla.org/III/misc/im-e.htm

  • 3.4.4 Personality Rights

In most jurisdictions, individuals have legal rights over the use of their likeness (i.e., face, voice, other distinguishing characteristics). This is particularly relevant for famous persons. This bundle of personality rights known in the US as “right of publicity” prevents the use of their likeness for promotion of products or services

without their authorisation, and protects revenue from endorsements. Cultural heritage institutions must avoid the unauthorised use of images of famous persons in promotional or online resources. Similar laws protect the use of images of fictional characters. The right of publicity shall not be confused with the (potentially conflicting) freedom enjoyed in most legal systems by the press or educational institutions to freely use pictures of public characters insofar as the use and display of such images is justified by purposes of news reporting, educational uses etc. A good example of this approach in relation to free use of public characters’ images is given by article 97 of the Italian Copyright Act (i.e. Law 633/41).

Guidance

The Arts and Humanities Research Council Centre for Studies in Intellectual Property and Technology Law at The University of Edinburgh (AHRC) has a database of personality rights cases, including analysis, at

http://personalityrightsdatabase.com/index.php?title=Main_Page

The Italian copyright law referenced above can be consulted at

http://www.agcom.it/L_naz/l_633_41.htm

  • 3.4.5 Authenticity and Certification

It is of course essential that cultural items which are published online by cultural heritage institutions are authentic. The credibility of the cultural heritage institution is at stake if the material published by the institution is not authentic.

  • 3.4.6 Reproduction Rights

The cultural heritage institution must ensure that it has authorisation to reproduce the items that it wishes to include in its online resource. Since placing an item on the Internet amounts to effectively copying and making the item available to the public, the cultural heritage institution must be able to show that it owns not just the item, but also the right to reproduce it. The fact that a cultural heritage institution happens to own an item does not necessarily imply that it has the right to reproduce it, or to publish it online. In particular, the fact that national laws (e.g., the Italian Code of Cultural Heritage and Landscape) may establish copyright-like reproduction rights on out-of-copyright cultural assets (e.g., works of art, archaeological findings, etc) in favour of the cultural heritage institutions that own and physically safeguard them should also be taken into account prior to undertaking digitisation and online publication projects.

Guidance

The International Federation of Reproduction Rights Organisations is at http://www.ifrro.org/show.aspx?pageid=home

3.4.7

Donor Restrictions

The fact that a person or organisation has donated an item to a cultural heritage institution does not necessarily imply that the intellectual property rights to the item have also been donated. In addition, donors may sometimes explicitly restrict the manner in which items may be used. Prior to online publication, the cultural heritage institution must verify that there are no restrictions of this nature, and that rights have been cleared.

  • 3.4.8 Safety of Cultural Property

The publication of information about cultural property raises its profile. More people become aware of the cultural property, its location, its value and its other properties. This creates a risk that unscrupulous third parties may use the information provided on the internet to identify and steal or damage cultural property. A significant proportion of all cultural property is not protected – it is outdoors, often in relatively remote locations, sometimes under the sea. Care must be taken that cultural heritage information published online does not lead to an increase in theft, vandalism or other damage.

  • 3.4.9 Unfair Competition

While creating a new online resource, the cultural heritage institution may investigate the existence of similar resources which are provided on a commercial basis. For example, genealogical resources are provided by a number of companies online; the provision of free online access to similar resources may impact on the business of commercial companies. In order to avoid accusations of unfair competition, the cultural heritage institution may review the marketplace and attempt to avoid intruding on the business space of established enterprises. However, this prudent approach should not discourage cultural heritage institutions from commercially exploiting their digitised resources insofar as the services they are able to provide through digitisation techniques are integral to their institutional mission.

  • 3.5 New Licensing and Access Models

The copyright and industrial intellectual property rights described in section 3.1 and Appendix A are all based on the Berne and Paris conventions. While the intellectual property laws have developed continuously in the last century, the fundamental concepts remain constant.

The arrival of the internet and the opportunity for large-scale publishing of ideas and works at very low cost has led to the demand for new forms of intellectual property protection, and for new models which enable free sharing and duplication of ideas, without the loss of ownership of an idea or a work. This demand is also driven by a perception (see section 5.2.9 et seq) that traditional copyright law and more recent rights management technologies have a negative effect on society’s ability to create, to innovate or to enjoy content.

One response to these perceptions is the open source software movement; a more recent development is the creation and publication of other (non-software) forms of content on the internet, using a class of intellectual property management called ‘Creative Commons’. These are explored here.

By and large, these new license models are applied most often to digitally-born works such as web pages, documents, diagrams, software and documentation. They are also increasingly applied to digital photographs, music recorded in digital formats and other forms of digital art. In general, the new licensing schemes aim at “deactivating” copyright restrictions by making duplication and distribution of works easier.

  • 3.5.1 Collective Rights Management

Collective Licensing is an access model where copyright holders make their works available for duplication, download, sharing, public performance, broadcast, etc. through a collective organisation. The collective organisation receives fees for the use of the material it manages, and it allocates these fees to its members on the basis of the popularity of their works. A similar model exists in the payment of fees for music broadcasts by radio stations. This has significant benefits for all concerned – the radio stations do not need to discover and pay thousands of different rights holders; musicians do not need to concern themselves with monitoring and demanding payment for the broadcast of their works.

It has been suggested by the Electronic Frontier Foundation that a similar model could be used for music sharing online.

Guidance

The Electronic Frontier Foundation’s paper on collective licensing for music sharing is at

http://www.eff.org/wp/better-way-forward-voluntary-collective-licensing-music-file-

sharing

A Danish approach to extending collective licensing in the library sector is provided at

http://ec.europa.eu/information_society/activities/digital_libraries/doc/mseg_meet/

1st/von_hielmcrone.ppt#1

  • 3.5.2 Creative Commons

Creative Commons is a non-profit organisation which develops and publishes legally binding licences that allow a rights holder to grant some or all of their rights to the public while keeping others. Creative Commons licences offer a set of licensing models which range from dedication of a protected work to the public domain to retention of most rights of commercial use.

The underlying driver for Creative Commons is the fact that the organisation believes that copyright legislation does not stimulate the re-use and further development of copyrighted information, and that creators are held back by the restrictions of standard copyright models. Creative Commons licenses protect the rights of creators, while enabling more open use of the works which they create.

Creative Commons licenses were originally created for the US legislative context; a wide range of localised licenses are now available.

The underlying driver for Creative Commons is the fact that the organisation believes that copyright legislation

Several million pages of web content use Creative Commons licenses.

Guidance The Creative Commons website is at www.creativecommons.org.

An exploration of

the

value

of

Creative Commons for public sector

information (in the Netherlands), including a description of Creative Commons,

is at

http://www.ivir.nl/publications/eechoud/CC_PublicSectorInformation_report_v3.df

3.5.3 Open Content

The OpenContent Licence is

another

licensing

model

The underlying driver for Creative Commons is the fact that the organisation believes that copyright legislation

which provides a legal solution to enable the copying and distribution of content without payment.

Open content describes any creative work which can be freely copied or modified by anyone. Wikipedia is the largest open content project. Open content is royalty free – it may be in the public domain or it may be governed by a free (i.e., no-payment) license such as one of the Creative Commons licenses.

Open Content licenses vary somewhat in terms of what they allow. In general, open content licenses allow free copying and distribution of the work. However, the creation of derivative works by the grant of permission to re-use the licensed content may be more controlled. Some common restrictions include the following:

  • - works which derive from an open content license must themselves be released under an open content license – this prevents a third party from making a commercial product on the basis of content he received for free;

  • - the open content shall not be used in a commercial application;

  • - a copy of the license must be attached to any derivative work – this ensures that further descendant works are covered by the same licence;

  • - attribution of the source of the content must be attached to the content, and retained in later derivate (‘descendant’) works. This attribution is often the only form of reward enjoyed by the original/previous creator, and is used by him as a method to develop reputation, employability, etc;

  • - no warranty is provided – the work is provided on an ‘as is’ basis.

  • - The license cannot be modified.

Guidance

A website providing general information on Open Content is at http://opencontent.org

3.5.4 Open Source

- attribution of the source of the content must be attached to the content, and retained

Open source is a software development method where teams of volunteer programmers work on projects which are released free of charge, typically over the internet. The source code is released, which means that other programmers can review, modify and enhance the software, and release it again. This can lead to high-quality software development, as well as the involvement of many talented people in each project. It also means that the user of an open source product can adjust it to his own ends.

An open source software license complies with the following:

  • - The software can be redistributed, either on its own or as part of a larger solution.

  • - The software must include the source code, and must allow the distribution of the source code.

  • - The software must allow the creation of derivative works, which may be distributed under the same license. If the author wishes to protect the integrity of his source code, he must allow the parallel distribution of ‘patch files’ which modify the code at build time.

  • - The software must be available to all groups and in all fields of endeavour.

  • - The software license must not rely on the software being part of a greater solution or package.

  • - The software license must not restrict the distribution of any other software with the software

  • - The license must not enforce any particular technology or style of interface.

There are dozens of major open source licenses, each slightly different from the other, but all meeting the criteria outlined above. Examples include the Apache Software licence (covering the popular Apache Web Server), the GNU General Public Licence (GPL), CeCILL, the Nokia Open Source Licence, the Mozilla Public License, and many more.

It is worth noting the recent approval and release in all languages of EU Member States of the European Union Public License (EUPL) by the European Commission – DG for Informatics, within the Open Source Observatory project. This new open source licence was developed by the European Commission with a view to applying it to the free distribution of its own software to citizens, undertakings and public administrations in the context of e-government and e- learning programs.

It is worth noting the recent approval and release in all languages of EU Member States

Figure 2 - Copyleft and anti-copyright logos. From ‘A Guide to Open Content Licences’ by Lawrence Liang (http://pzwart.wdka.hro.nl/mdr/research/lliang/open_content_guide).

).

A large proportion of all Internet sites use open source components. Particularly popular are

  • - Apache, the web server that drives more websites than any other

  • - Linux, a very popular operating system

  • - MySQL, PostgreSQL, Firebird and other open source databases

  • - PHP, Python, and other scripting languages

3.5.4.1 How Open Source Works

Open source software is developed by teams of collaborating programmers, who typically work in different organisations and even in different parts of the world, who are interested in a particular problem domain. There are many thousands of open source projects being developed at any one time, depending on the time and the enthusiasm of their development teams.

Typically, open source software does not offer professional support or make guarantees as to functionality; however, this limitation is overcome by the availability of active, enthusiastic user communities, who share an ethos of assistance and open knowledge. The communities may include the developers of

the software, or simply those who have used it and are in a position to help others. Commercial support for very popular open source software is often also available, from companies and individuals who are expert in the software. While the software cannot be sold, support and consultancy can be.

3.5.4.2 Impact of Open Source Model on Cultural Heritage Applications

Open source software, by its very nature, is flexible and easily modifiable by a competent programmer. This means that the software can evolve over time, to cope with the requirements and demands of changing legislation and technology. A cultural heritage project which uses open source software thus has the opportunity, given the right human resources, to maintain access to its materials across new technology versions, in compliance with new standards, and in the face of new requirements from users, government and other stakeholders. Interoperability with other (and future) systems is facilitated in the open source context, by the fact that the software can be extended, without losing existing functionality.

Guidance

A website outlining open source initiatives is at www.opensource.org

EUPL: http://ec.europa.eu/idabc/en/document/7330

CeCILL, Licence française de logiciel libre http://www.cecill.info

3.5.5 Open Access

As mentioned above, Open Access (OA) is a publication model for cultural and academic publications that relies on the use of the internet. Peer review in academic open access publication is carried out either by OA journals or by readers commenting on the papers online. Authors, peer reviewers and OA journal editors all donate their time – this is not incompatible with existing academic publishing, where authors are not paid for their papers.

OA is also supported by cultural heritage organisations which believe that it should be easier to gain access to cultural content online.

OA is typically funded by institutions which host the material, sponsorships, fee payments by authors, subscription by academic institutions or companies, or the provision of advertising or auxiliary services.

OA has a number of advantages for the publication of scholarly communications:

  • - there are no price barriers: access is free;

  • - there are no permission barriers: OA publications are copyright-free (the use of OA material in a commercial application may or may not be free);

  • - OA licences typically protect the integrity and attribution of content;

  • - OA does not preclude copyright, peer review, career advancement, revenue or other aspects of traditional scholarly publication. But the costs are not borne by readers, and so do not serve as barriers to access;

  • - scholars lose nothing by using OA – unlike musicians and movie producers, scholars typically receive no payment from journals or publishers.

Much OA content is published under a Creative Commons-like license. The wide range of such licensing standards allows authors to control the degree of freedom enjoyed by the public in terms of re-use of their work.

OA requires the consent of the author. It is not the same as the public domain. Nor is it similar to file sharing networks such as KazaA, e-Mule or Bit Torrent, where copyrighted works are often copied, made available and accessed by users illegally, i.e. without the right-holders’ authorisation. This does not mean that the adoption of open access licences is not relevant to peer-to-peer networks. On the contrary, the use of standardised OA licences to protected content by its author and the subsequent insertion of a link to the text of the licence into the metadata of the file embedding the content makes it much easier for the users to understand that the content can be freely copied and disseminated under certain conditions.

Guidance

IFLA (International Federation of Library Associations and Institutions) has a statement on Open Access here http://www.ifla.org/V/cdoc/open-access04.html

The Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities is available here:

http://oa.mpg.de/openaccess-berlin/berlin_declaration.pdf

The ECHO project is an example of an open access project focusing on cultural heritage, at http://echo.mpiwg-berlin.mpg.de/home

  • 4 Rights Clearance Guidelines

This section provides practical guidelines on rights clearance for cultural heritage institutions which are engaging in projects which digitise cultural heritage items and provide access to the digital material over the internet. Such projects are referred to here as “online culture projects ” or simply ‘projects’.

Requirement Levels

Further, in standards documents, the key words ‘must, should and may’, when printed in bold text, are used to convey precise meanings about requirement levels. These requirement levels reflect the terminology used in Internet Engineering Task Force (IETF) documentation, and defined in IETF RFC 2119.

  • - Must: This word indicates absolute technical requirement with which all projects must comply.

  • - Should: This word indicates that there may be valid reasons not to treat this point of guidance as an absolute requirement, but the full implications need to be understood and the case carefully weighed before it is disregarded.

  • - May: This word indicates that the topic deserves attention, but projects are not bound by this advice.

There are two main issues to be considered – rights clearance and publication. Rights clearance is concerned with identifying the rights holder for any material that you plan to publish. Publication is concerned with protecting your own rights, and those of your rights holders, when your material is accessible online.

4.1 Summary

Before digitising a work, a cultural heritage institution should carry out at least the following steps

  • 1. Rights Clearance – ensure that permission from the rights holder is available, where necessary, for the digitisation and publication of the work.

  • 2. Where the rights holder cannot be identified, or does not respond to communication, or no longer exists (e.g. a bankrupt company) – take and record all reasonable steps to secure copyright clearance. If clearance cannot be obtained, consider not digitising the works. Only proceed where the benefit, risk of problems and potential costs of problems have been considered and balanced. This applies particularly to orphan works. The Memorandum of Understanding approved in June 2008 under the i2010 Digital Libraries initiative details a useful procedure of diligent search for right-holders to orphan works.

  • 3. While there is clearly no requirement to obtain permission to digitise digital-born works, all other rights (such as reproduction and publication) must be cleared.

  • 4. Where it is assumed that a work falls into the public domain, ensure that this is the case.

  • 5. Where a project considers its use to be covered by a copyright exception, and thus not subject to copyright restrictions, this must be fully verified. The key criterion is the impact which your actions may have on the commercial interests of the rights holder. Only proceed where the benefit, risk of problems and potential costs of problems have been considered and balanced. Bear in mind that the 2001 Copyright Directive is not overall very supportive of copyright exceptions, and that web publication of copyright works is unlikely to be able to use any exceptions as a justification.

Pragmatically, cultural heritage institutions may consider digitising only items which are either certainly in the public domain or items to which the institution certainly owns the full copyright.

  • 4.2 Obtaining Permission

A fundamental first step for online culture projects is to ensure that the cultural heritage institution has authorisation from rights holders to duplicate (digitise) items and to place them online (publish and distribute). If items are expected to be free of copyright restrictions, this must be verified.

The rights status of items will be an important factor in the selection of which items to digitise and publish online.

Guidance

Excellent resources on copyright can be found at

British

Academy:

http://www.britac.ac.uk/reports/copyright-

guidelines/final%20guidelines.pdf

Technical

Advisory

Service

for

Images

(TASI)

http://www.tasi.ac.uk/advice/managing/copyright.html

A case study of how rights holders were tracked down by two UK projects is presented by AHDS at http://ahds.ac.uk/creating/case-studies/tracing- copyright/index.html

4.2.1 Digitisation and Publication of Physical (non-Digital) Items

Projects must establish the copyright status of all physical items which are to be digitised and placed online. Projects may use the copyright status of an item as a criterion in the selection of which items to include in the scope of the project. Projects should establish the intellectual property status of items before beginning the digitisation process.

Projects should establish whether an item falls into the public domain. The most common test will be to establish the identity and time of death of the creator of the item. Items where the creator has been dead for over seventy years will usually be in the public domain.

Guidance

Several EU projects address the public domain. Examples include Communia (www.communia-project.eu), rightscom (www.rightscom.com)

More in-depth discussion of the underlying rationale is presented by the Foundation for Information Policy Research (FIPR) at

http://www.fipr.org/intellectual.html

Where an item does not immediately fall into the public domain, projects should create a record (a diligence file) of the research and other effort invested in identifying the rights holder, contacting the rights holder and receiving authorisation to digitise and place the item online. Such a record will be valuable in the event that no rights holder authorisation can be established, to demonstrate that the project took all reasonable efforts to secure the authorisation. This applies particularly to orphan works (see section 3.1.9) and follows the approach suggested by the guidelines for diligent search for right- holders to orphan works developed within the EU i2010 Digital Libraries initiative.

If no authorisation is secured, projects should establish whether or not the digitisation and online publication of the item may benefit from a copyright exception (see section 3.1.7). If the project concludes that its work does in fact fall under an applicable exception, the arguments and evidence supporting this must be recorded.

If an item has been donated to the cultural heritage institution, the project must establish whether or not a deed of gift or other documentation exists, and whether or not this documentation covers copyright, reproduction or publishing. Where such restrictions exist, the donor may be contacted and authorisation to digitise and publish must be secured prior to publication.

4.2.2

Publication of Digital Born Items

Where the items to be included in the scope of the project are digital born, there is no requirement to secure authorisation to digitise them. However, such items are certain to be covered by copyright restrictions.

If the cultural heritage institution does not possess explicit authorisation to duplicate, publish and distribute the digital born item, clearance must be secured from the rights holder. Projects must create a record of the research and other effort invested in identifying the rights holder, contacting the rights holder and receiving authorisation to publish the item online. Such a record will be valuable in the event that no rights holder authorisation can be established, to demonstrate that the project took all reasonable efforts to secure the authorisation. This applies particularly to orphan works (see section 3.1.9) and follows the approach suggested by the guidelines for diligent search for right- holders to orphan works developed within the EU i2010 Digital Libraries initiative.

If no authorisation is secured, projects should establish whether or not the online publication of the item is shielded by a copyright exception (see section 3.1.7). If the project concludes that its work does in fact fall under an applicable exception, the arguments and evidence supporting this must be recorded.

If an item has been donated to the cultural heritage institution, the project must establish whether or not a deed of gift or other documentation exist, and whether or not this documentation covers copyright, reproduction or publishing. Where such restrictions exist, the donor may be contacted and authorisation to publish must be secured prior to publication.

  • 4.2.3 Rights Assessment Examples

This section provides some examples of rights clearance rules. However, these vary from country to country, and cultural heritage institutions should verify which rules apply to them.

4.2.3.1 Photographs

In general, copyright in a photograph rests with the photographer, unless a contract exists to the contrary (e.g. with an employer, with a customer). Photographs of art works are an exception, however. However, like all copyright, the rights over photographs have a limited duration. Let us take UK copyright law as a useful example.

In the UK, the following applies with regard to photographs:

  • 1. all photographs taken before 1946 have no copyright.

  • 2. Photographs taken since the start of 1946, but before 1989 are protected by copyright for seventy years from the death of the photographer.

  • 3. If the photograph was commissioned, copyright is vested in the commissioner.

  • 4. If the copyright is not commissioned, copyright belongs to the person who owned the film on which the photograph was taken (not to the photographer).

  • 5. After 1989, the photographer has copyright over the image he creates.

  • 6. It may be noted that if a photograph has never been published before, copyright is created when it is first published (e.g. on the website of a cultural heritage institution), with a duration of 25 years.

The complexity of the UK situation is not unusual, since many countries have similarly complex rules. The cultural heritage institution must ensure that it fully understands these national copyright rules prior to publication of photographs on a website.

Guidance

The above points, and much more, are to be found at the artquest website http://www.artquest.org.uk/artlaw/artlaw.htm

  • 4.2.3.2 Photographs of Artwork

If a photographer makes a photograph of an artwork, the copyright remains with the artist, not the photographer. The photographer is considered to have created a ‘mere or slavish’ copy of the artwork, rather than having exercise his own creativity. This applies even if a great deal of effort and expertise was invested in taking the photograph. The underlying case law is from a 1999 US court case between the Bridgeman Art Library and Corel Corporation. To date there is no EU case law, though UK legislation follows the same logic as the US court decision.

This means that cultural heritage institutions who publish photographs of artworks in their collections, where the artworks themselves are out of copyright due to age, do not automatically have copyright in these photographs. Instead, they must rely on the terms and conditions, and the contracts with users of their websites, to protect their interests and prevent exploitation of the images of their artwork.

If the artwork is itself subject to copyright (e.g. relatively modern) then the photograph is a breach of copyright and must be authorised by the copyright holder. Any subsequent publication or distribution of the photograph must also be authorised.

  • 4.2.3.3 Photographs of Persons

The general rule that a photographer owns the copyright to his photographs applies to photographs of persons. However, personal privacy legislation protects persons from intrusive publication of their images and activities; personality law adds additional protection (section 3.4.4). The permission of the persons shown

in the photograph, or named in the photograph metadata or caption, must be secured before a cultural heritage institution publishes such photographs online.

Guidance

The Arts and Humanities Research Council Centre for Studies in Intellectual

Property and Technology Law at The University of Edinburgh (AHRC) has a database of personality rights cases, including analysis, at

http://personalityrightsdatabase.com/index.php?title=Main_Page

  • 4.2.3.4 Databases

Databases are protected in the EU by database rights (section 3.1.6). In general, projects should not extract large amounts of data from third party databases and use them on their own online projects. In addition, where material is extracted from a database, the copyright status of the material itself (as well as the database) must be clarified.

Where a cultural heritage institution wishes to provide a metasearch or portal functionality to third party databases, the authorisation of the database owner and creator should be secured in advance. The terms of use agreement between the end user and the database owner may also be relevant.

Guidance

The Directive which directly addresses the IP protection for databases is at

http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML

  • 4.2.3.5 Metadata

The publication of metadata for online images must take into account personal privacy legislation. If individuals can be identified from the image metadata, their consent must be secured before such metadata is published online.

The assembly of metadata is itself protected under copyright law – the metadata is a literary composition and involves significant intellectual input from its creator.

The harvesting of metadata and its subsequent publication online (e.g. in a project which utilises the OAI-PMH protocol) must first be authorised by the metadata owners.

  • 4.2.3.6 Personal Letters and Diaries

Personal letters and diaries are protected under copyright legislation. The authors of the letters and diaries are the rights holders. However, copyright

exceptions under national laws (section 3.1.7) may allow the publication of extracts or quotations from such personal correspondence.

In addition, personal privacy legislation will apply; this may include in its scope both the author, the recipient (if a letter) and any other persons mentioned in the letters and/or diaries. Defamation and libel law may also apply. Cultural heritage institutions should carefully review the content of personal letters and diaries prior to publication – such documents may not have been composed with publication in mind.

Guidance

The

w3c

has

an

initiative

on

personal

privacy

policies

at

http://www.w3.org/P3P/details.html

and

some

guiding

principles

at

http://www.w3.org/TR/P3P/#guiding_principles

EU Data Protection law is outlined at http://ec.europa.eu/justice_home/fsj/privacy/index_en.htm

  • 4.2.3.7 Musical Works and Sound Recordings

As discussed under Related Rights (section 3.1.5), there are several rights holders in a musical work. These include the composer of the music, who usually holds copyright, the performer, the producer and potentially also the broadcaster (all of whom usually hold related rights). The likelihood is that music works and sound recordings will be subject to both copyright and related rights. Authorisation must be secured from each stakeholder before the musical work or sound recording can be duplicated or published.

In EU countries, sound recordings (i.e., the recording of the music performance, rather than the composition of the music) are protected for 50 years from the year of recording or from date of release. The common duration of this protection in all EU countries was initially set out under Directive 93/98/EEC, which was recently replaced by Directive 2006/116/EC for a pure matter of codification of later amendments.

  • 4.2.3.8 Moving Images

Moving images (films, movies) have much in common with music – there are several rights holders, with rights ranging from copyright to related rights. Again, it is likely that any moving image work will be in copyright, and so projects must secure authorisation from all rights holders before the moving image can be duplicated or published.

In the EU, under the directive (93/98/EEC, replaced by 2006/116/EC), copyright protection extends for 70 years from the death of the last principal director, author or composer.

Guidance

Directive 2006/116/EC is available at

http://eur-

lex.europa.eu/LexUriServ/site/en/oj/2006/l_372/l_37220061227en00120018.pdf

4.2.3.9 Software

Software is protected by copyright throughout the EU. The authorisation of the copyright holder is needed to run, copy, modify or distribute the software. Where software is modified, the modifier may have copyright in his changes; the original author will also usually retain his rights. Software copyright is covered by directive 91/250/EEC. In order to be protected under the directive, the software must be original.

Guidance

The EU has a directive (Directive 91/250/EEC) on software copyright, accessible at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?

uri=CELEX:31991L0250:EN:HTML

A briefing document on the Directive is available from the IPR Helpdesk project at http://www.ipr-helpdesk.org/docs/docs.EN/softwareCopyright.html#N40013B

Projects using software must ensure that the software has been distributed to them in a manner authorised by the copyright holder and with his authorisation. Projects must also abide by whatever licence agreement governs the software.

Software is the type of content most often governed by open source, copyleft and other less-restrictive forms of licence. Where appropriate, a project may prefer to use software which is available under such licences. However, the project must be fully aware of the details of such licenses and must abide by them.

Guidance

The website of the open source initiative is at www.opensource.org

Copyleft is well explained here: http://www.gnu.org/copyleft/copyleft.html

4.2.4 Authorisation, Permissions and Licence Negotiation

It is clear that an online culture project must have authorisation from the holders of rights in the items to be used in the project. Alternatively, the items must be

free of copyright or the project must plan to use the item in a manner for which authorisation is not required.

  • 4.2.4.1 Establishing a Legal Basis

If a project intends to enter into legal agreements with rights holders, in order to enable the distribution, publication or duplic ation of protected works, the project must have a clear legal identity. This will usually be the cultural heritage institution which is running the project (e.g. the library or museum). However, project managers should verify that there is no obstacle or legal restriction to entering into legal agreements of this type.

  • 4.2.4.2 Obtaining Authorisation

The first step to obtaining authorisation is to identify the copyright holder. The institution should open a ‘diligence file’ for each item –an information repository which records the work done by the institution to gain authorisation. Where it is possible to identify the rights holder, the project must contact the rights holder and secure his permission.

Guidance

Diligence

files

are

described

by

VADS

and

TASI

at

http://vads.ahds.ac.uk/guides/creating_guide/sect29.html

In order to gain permission, the project is very likely to need to state the purpose of the project, the manner in which the item will be used, the duration of use and the intended audience. This information will enable the rights holder to assess the commercial or other impact of granting permission.

The project should have the rights holder sign a licence agreement for the use of the item by the project. This should state any restrictions over the manner of use of the item, so that there is no potential for subsequent conflict. All documentation should be stored in the diligence file.

Guidance Licences are outlined by VADS and TASI at http://vads.ahds.ac.uk/guides/creating_guide/sect27.html Sample licence agreements can be found
Guidance
Licences
are
outlined
by
VADS
and
TASI
at
http://vads.ahds.ac.uk/guides/creating_guide/sect27.html
Sample licence agreements can be found at the University of Texas website
http://www.utsystem.edu/ogc/intellectualProperty/contract/cprtlic.htm.
A much wider selection of sample agreements is available from the same
source, at http://www.utsystem.edu/ogc/intellectualProperty/dbmock.htm

It is likely that the rights holder will place constraints on the manner of publication of the item, so that it has minimal impact on the commercial or other potential of the item. For example, it may be necessary to restrict the resolution of images, or to place a large watermark on the image. The rights holder may also wish to review the terms of use of the project website, so that the rules governing the end users are clear. Projects may offer several technology options to rights holders, in order to gain permission for the most beneficial end product for the users. For example, if high resolution images are not to be published, a ‘zooming’ version of the images may be allowed, which enables users to view portions of the image in high resolution, without any access to a high-resolution image

All agreements must be carefully preserved.

  • 4.2.4.3 Items free of Copyright

If a project believes that items to be published are free of copyright, this should be verified and the reasons for this belief should be noted in the diligence file. While the guidelines in this document will provide some of the information needed, projects should also review the national legislation on copyright limitations. The usual reason to believe t hat items are free of copyright is if copyright has expired (see section 3.1.2).

To recap, most works under EU copyright law are out of copyright 70 years after the death of the author or after that of the last co-author.

Guidance

Guidance on duration, and on other aspects of copyright, is available from the UK National Archives at http://www.nationalarchives.gov.uk/legal/pdf/copyright_full.pdf

  • 4.2.4.4 Copyright exceptions

If the project believes that its use of a work can benefit from a copyright exception (see section 3.1.7), the reasons for this must be noted in the diligence file. While the guidelines in this document will provide some of the information needed, projects should also review the national legislation on copyright exceptions, and the effective implementation of the 2001 EU Copyright Directive in this field.

The key issue for copyright exceptions is that their effective enforcement should not impact significantly on the commercial or other interests of the copyright holder. This general rule is ultimately upheld by the so-called three-step test embodied into article 5(5) of the 2001 EU Copyright Directive.

According to the most convincing interpretation of this test under EU law (which borrowed it from article 9(2) of the Berne Convention), courts are entitled to apply copyright exceptions and limitations insofar as exceptions

  • - Refer to certain special cases (first step);

  • - Do not conflict with a normal exploitation of the copyrighted work (second step);

  • - Do not unreasonably prejudice the legitimate interests of the right-holder (third step).

Examples of areas of application where exceptions may apply include .

  • 1. Quotations

  • 2. News reporting

  • 3. Educational illustration

  • 4. Personal, private and archive copies which are not distributed.

An interesting statement on the limited function that copyright exceptions are expected to play with regard to digitisation projects was released in the UK, with

specific regard to

the

local

fair

dealing

doctrine

by

AHDS

(see

http://ahds.ac.uk/creating/information-papers/copyright-introduction/):

… Fair Dealing is aimed more at those engaged in

private

research

or

for

use

in

the classroom,

i.e. those that are only producing a small number of copies. The digitisation project that aims to

disseminate a digital resource on the Internet, with the potential for infinite copying, will not find much assistance from Fair Dealing.

Guidance

 

JISC

also

has

a

publication

on

Fair

Dealing

and

‘Permitted

Actions’

at

http://www.jisclegal.ac.uk/pdfs/FairDealing.pdf

4.2.4.5 Orphan Works

Orphan works (see section 3.1.9) are works which are in copyright but where the rights holder is impossible to identify or to contact. In general, orphan works may be used by projects only after all reasonable efforts to gain authorisation for their use have been made. A full record of such efforts must be recorded in the diligence file.

As mentioned above, useful guidelines for diligent search of right-holders on

orphan works

are provided

now

by

the

annexes to the Memorandum of

Understanding agreed upon by 24 stakeholders in June 2008 in the context of the EU Commission’s i2010 Digital Libraries initiative.

Guidance

The i2010 Digital Libraries High Level Experts Group addresses Orphan Works in its report at

http://www.edlproject.eu/downloads/report_HLEG_preserv_orphan_works.pdf

The June 2008 Memorandum of Understanding and its annexes are available on the Commission’s website at:

http://ec.europa.eu/information_society/activities/digital_libraries/index_en.htm

  • 5 Publication Background

The following sections explore IPR aspects of the publication process. In the scope of these guidelines, publication means publication on the internet, on a website which is accessible to the general public, but which may have terms and conditions of use with which users must comply.

  • 5.1 Website Design

The website of an online culture project should have certain legal elements in order to protect the cultural heritage institution which owns it. These include

Terms and conditions of use

A copyright statement

A disclaimer

Credits and attribution

These are described in more detail later in these guidelines (section 5.3).

The technology and functional design of the website should reflect the items published on the site, the intended use of the items (and the agreement with their rights holders, if applicable) and the intended audience.

Typically, an online culture project website will be driven by a database which holds the content, and a rendering engine which creates web pages based on the database content which the user wishes to see. Items such as photographs, music, film, etc. may be stored in the database or may be stored in the file system and linked to by the database.

Where feasible, the presentation elements of the website (the look and feel of the end user interface) should be separated from the content shown on the website and from the technical workings of the rendering engine.

5.1.1 Specific Design Decisions

A number of specific decisions must be taken by any online culture project in the planning of its website. These decisions affect the way in which the website can be used and how the items which it publishes can be accessed. These are discussed in the following sections.

5.1.1.1 Deep Linking

The project must decide whether or not to allow deep linking – the use of hyperlinks which link directly to a digital item, bypassing introductory screens and removing any branding or informational content. An online culture project may decide not to allow deep linking, by limiting the pages which are allowed to link to a particular item (the ‘Referer’) or by using Cookies. Deep linking prevention does not stop any user from downloading or saving images from a website onto a

local hard drive, and then re-using them, but it does prevent other websites from bypassing the front pages of your site.

It should be noted that sending fake ‘referer’ information (referrer spoofing) is technically not very difficult, and can be used to overcome some prevention strategies. Several free software packages are available to do this.

Guidance

W3C has a guide to deep linking at

http://www.w3.org/2001/tag/doc/deeplinking.html

Wikipedia describes deep linking at http://en.wikipedia.org/wiki/Deep_linking

A description of the use of the ‘referer’ information to prevent deep linking is provided at http://www.albionresearch.com/disaster/sex_sells.php

5.1.1.2 Framing

Any web page can be broken up into ‘frames’ – areas of the page which contain content from a single HTML document. This is very common on sites where the sidebar or the header is intended not to move (e.g. not to leave the visible part of the screen) when the main part of the screen is scrolled.

It is possible to populate frames with web pages from third party sites – this opens the opportunity for one web site to ‘wrap’ third party content with its own headers, navigation, etc. This can lead to users being misled as to the source of material they are viewing, or mistakenly believing that one site endorses or is associated with another.

It is possible to ensure that your website is not ‘framed’ by a third party site. This is achieved by ensuring that the window in which your site opens on top of any frameset, using the ‘_top’ frame name.

Guidance

Wikipedia has a section on framing, at

http://en.wikipedia.org/wiki/Framing_%28World_Wide_Web%29,

Another online resource about framing is at http://www.technorealm.co.uk/design/frame-targetting.html

A simple script to ensure that your content is not framed by another site is available at http://en.wikipedia.org/wiki/Framekiller

The W3C page which describes frames is at http://www.w3.org/TR/REC- html40/present/frames.html
The
W3C
page
which
describes
frames
is
at
http://www.w3.org/TR/REC-
html40/present/frames.html
  • 5.1.1.3 Inlining

Inlining (or inline linking, hot linking, leeching…) is the practice of embedding images or other content from a remote website within your own website. For example, if a website author wishes to include a cultural image from a museum website, he can embed an image (<img>) tag which points (deep links) to that image on the museum site. This leads to bandwidth costs for the site hosting the image; it also constitutes unauthorised use of the image on the linking site. Inlining also means that visitors to a third party site will view images without the surrounding information, such as terms and conditions, which might appear on the home site of the image.

In general, inline linking is frowned upon in the web community. It can lead to a lack of clarity as to the source and owner of content.

Technical solutions which prevent inlining are similar to those used for deep linking.

Guidance

Wikipedia’s page on inlining is at http://en.wikipedia.org/wiki/Inline_linking

A description of the use of the ‘referer’ information to prevent inlining is provided at http://www.albionresearch.com/disaster/sex_sells.php

A less easily circumvented approach to avoiding inlining of your content is presented at http://www.alistapart.com/articles/hotlinking/

  • 5.1.1.4 Graphic Layout

The layout and ‘look and feel’ of the online culture project website is largely a matter for the project team. However, the following may be noted

Compliance with accessibility guidelines such as the W3C Web Content Accessibility Guidelines is to be encouraged, and is in some cases mandated by funding agencies Multilingual text and user interfaces are to be encouraged, and may be mandated by the EU or other funding agencies Not all browsers support frames, javascript or Flash, and so these technologies may not be appropriate. That said, the large majority of browsers do in fact support frames and javascript, while Flash support is also very common.

There are thousands of sites online with web design tips – no specific sites are listed here.

Guidance

Accessibility guidelines published by the W3C Web Accessibility Initiative are available at http://www.w3.org/WAI/

A

useful

accessibility

assessment

tool

http://www.tawdis.net/taw3/cms/en

is

available

at

Guidelines on how to assess your site are provided at

http://www.w3.org/WAI/eval/Overview.html

  • 5.1.1.5 Domain Names

Domain names are important pieces of intellectual property, in that they represent the ‘brand’ of an online culture project. The domain name should be carefully chosen and registered without delay; renewal of domain names should take place in a timely manner. The more active a domain name is, the more attractive it is to a third party who can attempt to gain control of the domain name in order to use it to host advertising or to sell it back to the cultural heritage institution.

Domain names are allocated on a first-come first-serve basis. This means that popular names and brands may be registered by third parties, who expect to sell them to companies or others with whom the name is associated, for a profit. This practice is known as ‘cybersquatting’.

In the US, cybersquatting is illegal under the Anticybersquatting Consumer Protection Act (ACPA) 1999. In other countries, the Internet body ICANN has a resolution process (UDNRP) which may apply. The World Intellectual Property organization (WIPO) also provides an arbitration system.

Guidance

Domain names and related Intellectual Property issues are discussed by the W3C at http://www.w3.org/IPR/

Domain name disputes are covered by the World Intellectual Property Organisation at http://www.wipo.int/amc/en/index.html

  • 5.1.1.6 Meta Tags

Meta tags or meta elements are HTML tags which provide information about a website. They are used primarily by search engines, to categorise web sites.

Meta tags are important for end users because they influence the appearance of web sites in search engine results. They are important to the owners of web sites for the same reason.

Meta tags are placed in the <head> element of HTML and XHTML documents. They may include a page description, some key words, information about how the page was constructed, and other information not provided by other <head> elements.

While meta elements were, in the 1990s, a very important influence on the ranking of websites by search engines, this is less the case in recent years, where links to a website (particularly from popular websites) are more important, as are intrinsic factors such as uniqueness, quantity and quality of content, quality of hyperlinks, etc.

Of the meta elements, the keyword meta attribute is now largely ignored (inktomi is the only large crawler-based search engine which still indexes the keyword tag), while the description attribute is still used to a degree. Pragmatically, online culture projects may ignore the keyword attribute, and should not place excessive emphasis on the description tag.

Despite the decrease in value of the keyword and description tags, other meta tags remain useful for purposes other than search engine ranking. These include the author, language, copyright, date and PICS-related (age/adult content rating, etc.) tags.

Guidance

The W3C’s meta data (META) tags are described at http://www.w3.org/TR/REC-

html40/struct/global.html#h-7.4.4

5.1.1.7 Software

As noted above, most online culture projects use a database and a rendering engine to store and to display their content. These elements, combined with a back-end system for data entry, are often referred to as a content management system. The system will run on an operating system (typically Windows, linux or some other form of UNIX) and utilise a web server such as Apache or IIS. The database will often be an open-source offering such as MySQL or PostgreSQL. (See section 3.5.4 for more information on open source).

The software which is used by the site will have an impact on the security of the site, the end user experience and the protection of the intellectual property represented by the site. Some guidelines include

Projects should ensure that unauthorised large-scale harvesting of data from the site database is not feasible. This may be implemented using software component authentication. Projects may prevent access to particular files and directories/folders within their website, in order to control access to (for example) high resolution images. In websites running on the popular Apache web server, access can be controlled in a comprehensive manner using .htaccess files.

Projects should ensure that the systems software they are using (e.g. the database, the scripting language) is up to date and includes any security upgrades or patches. Such software is typically updated several times per year, to deal with issues or vulnerabilities which have been identified.

If a common content management system (e.g. PHPNuke, Joomla, Mambo, Wordpress, many more) is used, the project should monitor the website of the development community in order to track any new issues or vulnerabilities that should be dealt with.

Additional software may be used to provide specific functions such as watermarking, image zooming, etc. These are discussed later.

Guidance

An overview of open source content management systems is provided at http://www.la-grange.net/cms

An evaluation environment for open source content management systems is provided at www.opensourcecms.com

Guidance on using htaccess to prevent access to particular files in particular directories of your site is available here:

http://httpd.apache.org/docs/1.3/howto/htaccess.html

A wide range of open source content management systems can be found at the open source repository SourceForge www.sourceforge.net

5.1.2 Re-Use

While an online culture project may have very clear objectives at the time of project start, there is a strong likelihood that the material hosted by the project will be suitable for re-use in other domains. In such cases, projects must be aware that authorisation obtained for the purpose of the project may not be sufficient for the re-use of the material.

A good example is the educational sector, where the availability of high-quality cultural material online is an important teaching asset.

It is important that any intellectual property implications of such re-use are fully understood, and that additional authorisation is obtained where necessary. While Exceptions (section 3.1.7) may cover a certain amount of educational use, it should not be regarded as an authorisation to use copyrighted material freely in an educational context.

For each item that is to be re-used, the diligence file must be reviewed. Where authorisation was obtained, the rights holder must be contacted again and clearance obtained for the new application of the item. For material which was not authorised, the project must verify that the reasons quoted for its inclusion in the original project also apply to its new use.

  • 5.2 Technological Pr otection Measures

Over and above the legal and documentary protection described in the next section (section 5.3), online culture projects can protect their own and their contributors’ intellectual property rights using a range of technological tools which have been created for the purpose.

The use of technology to protect online copyright is an active research area. The commercial value of such research is enormous, particularly in the management of rights to music, images and film online. A wide variety of models, schemes and processes have been developed. In this section, a selection is considered:

Protecting images by restricting resolution

Watermarking, both visible and invisible

Digital Rights Management schemes

5.2.1 Image Resolution

The resolution of an image refers to the density and level of detail with which the image is shown – higher resolution images show more detail and are higher- quality in terms of the visual experience. In technology terms, resolution is defined in terms of the number of dots of colour (‘pixels’ or picture elements) per inch of image, and the number of bits of digital information per pixel.

The medium on which an image is viewed will have its own limitations in terms of the level of resolution it can display. A computer monitor typically displays 72 dots (pixels) per inch, while a commercially-printed image onto glossy paper or a printed digital photograph may have a resolution of several hundred dots per inch.